Constructive Dismissal: Breach of trust and confidence

In this case a Professor marked exam scripts and 12 students failed the exam. The University was concerned about this high number of fails and another member of the academic team re-marked the papers. The fact that this re-mark happened without consultation with the Professor amounted to a breach of the implied term of trust and confidence.

The test for a breach of trust and confidence is:

(1)What was the conduct complained of?

(2)Did the employer have reasonable and proper cause for that conduct?

(3)If not, was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?

The Professor could have resigned at that point. Instead he waited until an indepedent investigation was carried out into the re-mark. That investigation entirely exonerated the Professor.

The question for the EAT was whether the Professor could rely on the initial breach to claim constructive dismissal or whether the subsequent investigation had cured the breach meaning he was not constructively dismissed.

The EAT concluded that whilst the initial incident did breach the term of trust and confidence, the subsequent investigation cured the breach. The Professor’s claim failed. The important point here is that a grievance process is an opportunity to right a wrong, rather than, as is often the case, the chance to pour a bucket of white wash over an employee’s genuine concerns.